The proceeding covered a period of six months, and the Public Service Commission gave to the subject a most thorough investigation and consideration - its final decision being the substantial adoption of the remedy proposed by the Forest, Fish and Game Commission, that of oil burning operation, and providing for complete installation of such operation by April 15, 1910, upon the Mohawk & Malone, Carthage & Adirondack, and New York & Ottawa branches of the New York Central system; the Chateaugay branch of the Delaware & Hudson Company, and upon the Cranberry Lake railroad.

The result of this proceeding was one of great importance and most beneficial to the interests which this Commission is charged with having custody, control and supervision, and to the great interests of forest preservation in this State.

Experience has shown that by far the greatest menace to forest preservation is that of fire, the prolific source of which was shown to be the railroads operated through the forest counties. Measures had been repeatedly suggested, laws had been enacted and remedies proposed, all in the hope of eradicating the evil of railroad fires, but the experience of 1908 showed that these remedies and measures had been unavailing.

The damage and destruction done by fire not only includes the commercial value of the timber destroyed, but it comprehends the destruction of the forest floor which renders the soil unproductive for forest growth for centuries and completely ruins and destroys all its power to retain and store moisture.

By this proceeding an order has been secured requiring methods of operation of the railroads in the Adirondacks by which the forests and the interests dependent upon them may be adequately and efficaciously protected from destruction by fire from railroad sources.

Saranac River Reservoir Litigation

In 1906 and 1907 the Paul Smith Electric Light and Power and Railroad Company constructed upon the Saranac river at Union Falls, Clinton county, and at Franklin Falls, Franklin county, two dams of concrete and

cement construction for the storage of water for use in the generation of electric power in connection with its power plants at these places.

In the early part of 1908 the above-named corporation filled its reservoir at Franklin Falls to within ten to twelve feet of the crest of said dam and filled its dam at Union Falls to within about three or four feet from the crest of its dam.

The waters of the Saranac river were thereby caused to be set back and to overflow and inundate forest preserve lands of the State bordering upon the said river and in its immediate vicinity, and a considerable quantity of timber was injured and destroyed by such inundation the dam at Franklin Falls flooded an area of the State land to the extent of ninety acres and caused the destruction of upward of 2,500 live and growing trees, and the dam at Union Falls flooded an area of the State land to the extent of 200 acres and caused the destruction of upward of 5,000 live and growing trees.

Injuction actions were commenced by this Department and a temporary injunction was granted in each case restraining The Paul Smith Electric Light and Power and Railroad Company from raising and setting back the waters of the Saranac river upon the Forest Preserve lands of the State at any greater height than they were wont to be maintained by nature, and from taking and appropriating for its corporate uses and purposes the said lands of the State and from destroying and injuring the timber standing and growing upon the said lands by the maintenance and operation of its said dams at Franklin Falls and at Union Falls.

Although the actions have not been brought to trial, by reason of dilatory motions and appeals made by the defendant, the temporary injunction still remains in force and is as effective for the protection of the State's rights as if a permanent injunction had been granted.

A third action was thereafter commenced by the State against this company to recover penalties and damages for the destruction of timber upon its forest preserve lands, the amended complaint in that action demanding a judgment for $144,960.

Immediately after the joinder of issue in these actions the defendant made dilatory motions; first, for the settling and framing of issues of fact and direction of their trial by jury in the two injunction actions, and,

second, for a consolidation and trial of the three actions as one action. These motions were denied at Special Term and appeals taken by the defendant to the Appellate Division, and said appeals are now awaiting the decision of that court, argument thereon being recently made.

The defendant corporation for its own profit and advantage and with full knowledge that its acts were in violation of the statute and Constitution entered upon the lands of the State taking them for its corporate uses and purposes and caused the destruction of a large quantity of timber thereon.

In these actions the Department has succeeded in restraining the invasion of the defendant upon the public rights in the public domain and has sustained the integrity of the Constitution, the express prohibitions of which the defendant corporation openly and defiantly violated.

Fishway Litigation

On August 6, 1906, James S. Whipple, Forest, Fish and Game Commissioner, made an order pursuant to section 209 of the Forest, Fish and Game Law (chapter 20, Laws of 1900), requiring the Deposit Electric Company to erect an efficient fishway in its dam constructed and maintained by it upon the west branch of the Delaware river at Stilesville in Delaware county.

The order provided the character of the fishway to be erected and the method of its construction. The Deposit Electric Company pursuant to statute permitting an application to be relieved from the order, applied to the Supreme Court to vacate the order so made. Upon this Upon this application the petitioner raised and urged several specific objections and reasons why the said order should be vacated and set aside. The petitioner's contention being that upon the facts as established by the proofs used upon the application it was shown that the order made by the Forest, Fish and Game Commissioner was made without authority and should be vacated, and that the statute directing the erection of a fishway was unconstitutional so far as the dam of the petitioner was concerned, in that compliance with the order amounted to an interference of vested rights and the taking of private

property without making compensation therefor; and upon the further ground that the dam in question having been maintained for upward of seventy-five years the owners thereof had acquired an easement by prescription to continue to maintain it in the same manner.

This proceeding was the pioneer case testing the Constitutionality of the statute and the power of the Commissioner thereunder, and the facts in the case we're most unfavorable to the contention of the State and permitted the raising of almost every legal question which could be litigated under the order in question.

Mr. Justice Lyon, before whom the application was heard, upheld the constitutionality of the statute and the power of the Commissioner to make the order thereunder, and slightly modified the terms of the order as to the period of time during which the fishway should be maintained by the petitioner.

Appeal was taken to the Appellate Division, Third Department, and this court affirmed the order appealed from upon the opinion of Mr. Justice Lyon, in which it was held that the rights of the Deposit Electric Company to maintain its dam had at all times been subject to the rights of the public. We quote the following from the opinion of Mr. Justice Lyon:

"The people of the State have also as an easement in this stream the right to have fish inhabit its waters and freely pass to their spawning beds and multiply; and the right to take and use such fish for food, subject to such regulations as the Legislature may prescribe, and no riparian proprietor upon the stream has the right to obstruct the free passage of fish up the stream to the detriment of other riparian proprietors, or of the public.

"Not only has the Legislature the right to protect and regulate the easements of the right of an unobstructed navigation of the streams of the State, and of the right of an unobstructed passage of fish through such waters, but it has also the right to prohibit the taking of fish therefrom, and even from private waters within the State, and the discharge into the streams of substances harmful to fish, and such power has been frequently exercised, and such exercise repeatedly held to be constitutional and valid."

This decision holding that fish running at large are ferae naturae, and while in their natural element unconfined are public property and that no person can acquire property therein except by lawfully taking and reducing

them to possession, and that the Legislature has the right to protect and regulate the easement of the public to the unobstructed passage of fish through the streams of the State, and that the Forest, Fish and Game Commissioner acting under the statute has the power to order the placing of a fishway in a dam, is one of great importance and by it the right of the public to regulate, control and protect the fish life in the waters of the State, either public or private, firmly established.

There are many instances where dams have been constructed at or near the mouths of small streams, and which dams have prevented the passage of fish up the stream and deprived the fish of their necessary, proper and adequate spawning and feeding grounds, which can now be remedied by the order of the Commissioner providing for the erection of fishways therein.

Domesticated Deer Litigation

Charles F. Dieterich, who owned and maintained a private deer preserve at Mill Brook in Dutchess county, which preserve was originally started by the purchase of domesticated deer outside of the State of New York, in 1906 presented to the American Express Company at Mill Brook for transportation to New York city several carcasses of deer and venison, marked as deer and venison raised in confinement, and killed in his preserve. The express company, upon the advice of the Forest, Fish and Game Commission that such transportation would be illegal, refused to receive and transport the venison.

Action was immediately commenced by Mr. Dieterich against the American Express Company for an injunction restraining and enjoining the express company from refusing to receive and transport the venison from deer raised in confinement in his preserve.

The defendant company demurred to the complaint and the Forest, Fish and Game Commissioner was permitted to intervene as party defendant, and the defense of the action was thereafter conducted by the Legal Department of the Commission. The demurrer was sustained by the Trial